Perumutam RadhaKrishnan v. State of Kerala and Others

-1- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY, THE 24[TH] DAY OF SEPTEMBER 2021 / 2ND ASWINA, 1943** **WP(C) NO. 19998 OF 2021** ## **PETITIONER/S:** **PERUMUTTAM RADHAKRISHNAN AGED 55 YEARS S/O RAGHAVAN PILLAI, PERUMUTTATHU VEEDU, PALLISERICKAL, SASTHAMKOTTA P.O., KOLLAM BY ADVS. R.SUNIL KUMAR A.SALINI LAL ARUN KRISHNA** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM – 695 001. 2 R. CHANDRASEKHARAN, STATE PRESIDENT INTUC, INTUC STATE COMMITTEE OFFICE, K. KARUNAKARAN SMARAKA INTUC MANDIRAM, TC 43/1027(7), PARUTHIKUZHI, MANACADU P.O. THIRUVANANTHAPURAM – 695 009. 3 ELAMARAM KAREEM M.P., STATE SECRETARY, CITU, CITU STATE COMMITTEE OFFICE, E. BALANANDAN SMARAKA MANDIRAM, MELE THAMPANOOR, THIRUVANANTHAPURAM – 695 001. 4 K. P. RAJENDRAN, STATE SECRETARY, AITUC, AITUC STATE COMMITTEE OFFICE, M.N. SMARAKAM, TC 24/466, GANDHI BHAVAN ROAD, NEAR MODEL SCHOOL JUNCTION, HOUSING BOARD, THYCAUD, THIRUVANANTHAPURAM, KERALA 695 014** **SRI.N.MANOJKUMAR, STATE ATTORNEY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** **24.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No. 19998 of 2021 -2- ## **J U D G M E N T** S. Manikumar, C. J. Petitioner has sought for a writ of mandamus directing that the harthal called by Mr. R. Chandrasekharan, State President, INTUC, INTUC State Committee Office, Thiruvananthapuram, Mr. Elamaram Kareem M.P., State Secretary, CITU, CITU State Committee Office, Thiruvananthapuram, and Mr. K. P. Rajendran, State Secretary, AITUC, AITUC State Committee Office, Thiruvananthapuram, respondent Nos. 2 to 4 respectively, on 27.09.2021, as illegal, since the same was not informed to the general public before 10 days. 2. Alternatively, the petitioner has sought for a writ of mandamus, directing the Chief Secretary, Government Secretariat, Thiruvananthapuram, the 1[st] respondent, to ensure that the directions issued in **Sudhin S. v. Union of India and Others [2015 (1) KHC** **617]** , should strictly be implemented in letter and spirit, during the harthal to be observed on 27.09.2021. 3. Petitioner has also sought for a mandamus directing that W.P.(C) No. 19998 of 2021 -3- minimum 10 clear days' notice to be given for observing harthals. 4. In support of the prayers sought for, petitioner has contended that State of Kerala is only recovering after Covid – 19 pandemic. Economy of the State, as well as the country, has suffered a lot, due to pandemic and lock-down. 5. He has further contended that when State of Kerala is limping back to normalcy, facing harthal, which is a forced lock-down, would affect the economy, particularly the persons, who are living in the lower strata of the society, besides, by organizing harthal, people will be forced to stay inside their house, and there will be violation of fundamental rights. 6. In this context, petitioner has relied on the decision of a Hon'ble Full Bench of this Court in **Bharat Kumar v. State of Kerala [AIR 1997 Kerala 291]** , which banned bandhs. 7. Reliance is also made on a Hon'ble Full Bench decision of this Court in **Sudhin S. v. Union of India and Others [2015 (1) KHC 617]** , which refused to ban harthals, but directed the Government to take stringent action against violence in harthal, and further directed the Government to effectively implement the W.P.(C) No. 19998 of 2021 -4- directions issued by this Court, as well as the Hon'ble Apex Court. 8. Inviting the attention of this Court to Exhibit P2, a Bill sought to be introduced in the Assembly, viz., Act For Fair negation, Salutary Regulation and Special Legitimation, in Public Interest, of Harthals and Validation of Workers' Right to Strike Bill, in particular to Section 5, Mr. R. Sunil Kumar, learned counsel for the petitioner, submitted that no harthals can be permitted to be conducted, without giving 10 days clear notice, and stressing to the same, prayed to issue a writ of mandamus, declaring the harthal called by respondent Nos. 2 to 4 on 27.09.2021, as illegal. 9. That apart, inviting the attention to the directions issued by a Hon'ble Full Bench of this Court in **Sudhin S.** (cited supra), learned counsel for the petitioner submitted that though directions have already been issued to the Government that nobody should be compelled to participate in harthals or strikes, and that traffic should not be obstructed, yesterday, directions are issued by the Government, to postpone all the examinations. He also submitted that declaration of results of win-win lottery scheduled, has also been postponed. 10. Thus, according to the learned counsel for the petitioner, the W.P.(C) No. 19998 of 2021 -5- Government, instead of enabling the people to attend to their normal works and functioning of the institutions, in a way, has assisted the people to call on harthal, and thus, there is violation of the directions issued in Sudhin's case (cited supra). 11. Inviting the attention of this Court to Exhibit P1, extract from a newspaper report in Mathrubhumi daily dated 21.09.2021, which states that only certain activities like newspaper, ambulance, distribution of medicine, working of hospitals, marriage, traveling of patients, and other essential activities are exempted, which also reads that plying vehicles are requested to be stopped, shops and other commercial establishments to be closed to make the harthal a success, learned counsel for the petitioner submitted that Exhibit P1 extract of the Mathrubhumi daily report, which reflects the intention of the Coordination Committee, imposing restriction, on the fundamental rights of the citizens, which the Government have failed to consider. 12. Per contra, Mr. N. Manoj Kumar, learned State Attorney, submitted that the Government would strictly implement the directions issued in **Sudhin's** case (cited supra) and the order dated 21.11.2019 in W. P (C) No. 29675 of 2019 and connected cases. W.P.(C) No. 19998 of 2021 -6- 13. On the aspect of postponement of examinations and declaration of win-win lottery results, Mr. N. Manoj Kumar, learned State Attorney, submitted that there are no averments in the writ petition. 14. He further submitted that Exhibit P1 extract of the newspaper report in Mathrubhumi daily dated 21.09.2021, is only a press release, but the Co-ordination Committee, has decided to go for harthal, in line with the call made at the national level, and that a declaration to that effect has been made a month ago. He, therefore, submitted that the contention of the petitioner that notice has been issued by the Co-ordination Committee, only on 21.09.2021, is not correct. 15. In sum and substance, learned State Attorney submitted that the directions issued by this Court would be strictly implemented. 16. Heard the learned counsel for the parties and perused the material available on record. 17. In as much as Mr. R. Sunil Kumar, learned counsel for the petitioner has relied on Section 5 of the Bill, namely, Act For Fair negation, Salutary Regulation and Special Legitimation, in Public W.P.(C) No. 19998 of 2021 -7- Interest, of Harthals and Validation of Workers' Right to Strike Bill, we deem it fit to consider the said Section:- “5. Harthals to be prohibited by the Government— Harthals, when they cause stoppage of business or activity essential for the life of the community, shall be effectively prohibited by the State Government directly or through other delegated authority even though 10 days notice has been given.” 18. During the course of argument, Mr. R. Sunil Kumar, learned counsel for the petitioner, fairly admitted that though the abovesaid Bill was sought to be introduced, so far it has not become an Act. It is only at the stage of a Bill. 19. First prayer sought for in the writ petition is to issue a mandamus, declaring that the harthal called by respondents 2 to 4 illegal, since the same was not informed to the general public before 10 days. 20. Third prayer sought for in the writ petition is to issue a mandamus that minimum 10 clear days notice should be given before observing harthals. 21. It is trite law that mandamus cannot be granted for mere asking. First of all, statute prescribes a time limit, and therefore, when W.P.(C) No. 19998 of 2021 -8- there is no statutory duty imposed on the Co-ordinating Committee, or anybody who calls for a harthal, to issue a public notice giving 10 clear days time, petitioner cannot contend that there is a violation, and consequently, a mandamus should be issued. On the aspect as to when mandamus can be issued, we deem it fit to consider few decisions:- (i) In **State of Kerala v. A. Lakshmi Kutty** reported in (1986) 4 SCC 632, the Hon'ble Supreme Court held that, a Writ of Mandamus is not a writ of course or a writ of right but is, as a rule, discretionary. There must be a judicially enforceable right for the enforcement of which a mandamus will lie. The legal right to enforce the performance of a duty must be in the applicant himself. In general, therefore, the Court will only enforce the performance of statutory duties by public bodies on application of a person who can show that he has himself a legal right to insist on such performance. The existence of a right is the foundation of the jurisdiction of a Court to issue a writ of Mandamus. (ii) In **Comptroller and Auditor General of India v. K.S.Jegannathan** , reported in AIR 1987 SC 537 - (1986) 2 SCC 679, a Three-Judge Bench of the Hon'ble Apex Court referred to Halsbury's Laws of England 4[th] Edition, Vol. I, Paragraph 89, about the efficacy of mandamus: "89.Nature of Mandamus.-- .... is to remedy defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy, for W.P.(C) No. 19998 of 2021 -9- enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual." (iii) In **Raisa Begum v. State of U.P.** , reported in 1995 All.L.J. 534, the Allahabad High Court has held that certain conditions have to be satisfied before a writ of mandamus is issued. The petitioner for a writ of mandamus must show that he has a legal right to compel the respondent to do or abstain from doing something. There must be in the petitioner a right to compel the performance of some duty cast on the respondents. The duty sought to be enforced must have three qualities. It must be a duty of public nature created by the provisions of the Constitution or of a statute or some rule of common law. (iv) Writ of mandamus cannot be issued merely because, a person is praying for. One must establish the right first and then he must seek for the prayer to enforce the said right. If there is failure of duty by the authorities or inaction, one can approach the Court for a mandamus. The said position is well settled in a series of decisions. (a) In **State of U.P. and Ors. v. Harish Chandra and** Ors., reported in (1996) 9 SCC 309, at paragraph 10, the Hon'ble Apex Court held as follows: “10. ...Under the Constitution a mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition....” (b) In **Union of India v. S.B. Vohra** reported in (2004) 2 SCC W.P.(C) No. 19998 of 2021 -10- 150, the Hon'ble Apex Court considered the said issue and held that,- 'for issuing a writ of mandamus in favour of a person, the person claiming, must establish his legal right in himself. Then only a writ of mandamus could be issued against a person, who has a legal duty to perform, but has failed and/or neglected to do so.” (c) In **Oriental Bank of Commerce v. Sunder Lal Jain** reported in (2008) 2 SCC 280, at paragraphs 11 and 12, the Hon'ble Apex Court held as follows:- “11. The principles on which a writ of mandamus can be issued have been stated as under in The Law of Extraordinary Legal Remedies by F.G. Ferris and F.G. Ferris, Jr.: “Note 187.- Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duty to which the party applying for the writ is entitled of legal right to have performed. Note 192.- Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the W.P.(C) No. 19998 of 2021 -11- performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty. Note 196.- Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the court, subject always to the wellsettled principles which have been established by the courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the court may, and should, look to the larger public interest which may be concerned-an interest which private litigants are apt to overlook when striving for private ends. The court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances. Note 206.--......The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion reasonably and within his jurisdiction, that is, upon facts sufficient to support his action.” 12. These very principles have been adopted in our country. In **Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh and others** , AIR 1977 SC 2149, after referring to the earlier decisions in _Lekhraj Satramdas Lalvani v. Deputy Custodian-cum-Managing Officer, AIR 1966 SC 334; Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College, AIR 1962 SC 1210 and Dr._ W.P.(C) No. 19998 of 2021 -12- _Umakant Saran v. State of Bihar, AIR 1973 SC 964_ , this Court observed as follows in paragraph 15 of the reports : "15. .......... There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of the officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate Tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance. .... In the instant case, it has not been shown by respondent No. 1 that there is any statute or rule having the force of law which casts a duty on respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that respondent No. 1 was not entitled to apply for grant of a writ of mandamus under Article 226 of the Constitution and the High Court was not competent to issue the same." (v) When a Writ of Mandamus can be issued, has been summarised in _Corpus Juris Secundum_ , as follows: “Mandamus may issue to compel the person or official in whom a discretionary duty is lodged to proceed to exercise such discretion, but unless there is peremptory statutory direction that the duty shall be performed mandamus will not lie to control or review the exercise of the discretion of any board, tribunal or officer, when the act complained of is either judicial or W.P.(C) No. 19998 of 2021 -13- quasi-judicial unless it clearly appears that there has been an abuse of discretion on the part of such Court, board, tribunal or officer, and in accordance with this rule mandamus may not be invoked to compel the matter of discretion to be exercised in any particular way. This principle applies with full force and effect, however, clearly it may be made to appear what the decision ought to be, or even though its conclusion be disputable or, however, erroneous the conclusion reached may be, and although there may be no other method of review or correction provided by law. The discretion must be exercised according to the established rule where the action complained has been arbitrary or capricious, or based on personal, selfish or fraudulent motives, or on false information, or on total lack of authority to act, or where it amounts to an evasion of positive duty, or there has been a refusal to consider pertinent evidence, hear the parties where so required, or to entertain any proper question concerning the exercise of the discretion, or where the exercise of the discretion is in a manner entirely futile and known by the officer to be so and there are other methods which it adopted, would be effective." (emphasis supplied) 22. Though Mr. R. Sunil Kumar, learned counsel for the petitioner, submitted that 10 clear days' notice sought to be prescribed in Section 5 of the abovesaid Bill, is to enable the public or any other aggrieved person, to make objections or ventilate the grievances before the Government, and that judicial notice can be taken as regards the said period, this Court is not inclined to accept the said contentions for the reason that though the Bill intended 10 days' clear notice, the same has not fructified into law. W.P.(C) No. 19998 of 2021 -14- 23. In the light of the above discussion, prayer Nos. 1 and 3 cannot be granted and hence declined. 24. Mr. N. Manoj Kumar, learned State Attorney, submitted that the directions issued by this Court would be followed in letter and spirit. The State Government should ensure that the directions issued in **Sudhin's** case (cited supra) and other decisions of this Court, are implemented, ensuring fundamental rights of the citizens. Accordingly, writ petition is disposed of. **Sd/-** ## **S. MANIKUMAR** **CHIEF JUSTICE** **Sd/-** **SHAJI P. CHALY** **JUDGE** Eb ///TRUE COPY/// P. A. TO JUDGE W.P.(C) No. 19998 of 2021 -15- ## **APPENDIX OF WP(C) 19998/2021** **PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE NEWS ITEM PUBLISHED IN “MADHRBHUMI” DAILY DATED 21/9/2021 AND ITS TRUE TRANSLATION EXHIBIT P2 TRUE COPY OF THE RELEVANT PAGES OF REPORT OF LAW REFORMS COMMISSION 2009**